I have written a book on the politics of autism policy. Building on this research, this blog offers insights, analysis, and facts about recent events. If you have advice, tips, or comments, please get in touch with me at jpitney@cmc.edu

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Thursday, May 16, 2019

Due Process: Grim Odds in Maryland

School districts have built-in expert witnesses in the form of teachers and staff. They also have full access to all relevant information about a proposed placement, and often deny parents access to those programs in advance of hearings. When parents’ experts can observe children in class, districts can limit their observations. More important, parents have to foot the bill for their experts because of a 2006 Supreme Court decision that IDEA does not authorize reimbursement of witness fees. “While authorizing the award of reasonable attorney's fees, the Act contains detailed provisions that are designed to ensure that such awards are indeed reasonable,” Justice Alito wrote for the majority. “The absence of any comparable provisions relating to expert fees strongly suggests that recovery of expert fees is not authorized.” It goes without saying that this decision disadvantages all parents, and especially those with modest incomes.

It’s rare for the parents of students with disabilities to prevail in legal battles against Maryland school districts. In the past five years, they’ve lost more than 85 percent of the time, state education department documents show, even after investing tens of thousands of dollars and countless hours in pursuit of a better education for their children.

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Other states avoid such asymmetrical rates. [NOT CALIFORNIA, THOUGH. -- ed.]A study examining due process hearings in Texas found districts prevailed in roughly 72 percent of cases from 2011 to 2015. A similar assessment in Massachusetts found school districts won in a little more than half of the due process hearings over eight years.

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Some researchers believe districts prevail much more often because they have far greater legal and financial resources than a family does. Another explanation special education experts offer is the districts will attempt to resolve cases that are less likely to be won and go to a hearing only if they are supremely confident in their chances. Others believe judges give deference to the judgment of district officials.

“It’s always been a David and Goliath issue,” said special education attorney Selene Almazan.

Project HEAL produced a report analyzing each of the 105 due process hearings from fiscal year 2014 to the second quarter of fiscal year 2019, most of which were initiated by the parents.

Judges sided with school districts in all but 14 cases. No parents won if they represented themselves.